Warden v. Middleton

• Decision Date: 17 November 1913
• Parties: WARDEN v. MIDDLETON
• Court: Arkansas Supreme Court

161 S.W. 151

110 Ark. 215

WARDEN v. MIDDLETON

Supreme Court of Arkansas

November 17, 1913

Appeal from Carroll Circuit Court, Eastern District; J. S. Maples Judge; affirmed in part; reversed in part.

STATEMENT BY THE COURT.

Appellees sued appellants on a promissory note alleged to have been given them for the purchase price of a jack. Appellants' answer admitted the execution of the note, and that it was given for the purchase price of the jack. They allege that they were induced to purchase the jack from appellees by reason of false and fraudulent representations of the appellee, J. V. Middleton, that he would warrant that the jack would get only black and bay colts. Appellants also allege that appellant, Inez Warden, was a feme covert at the time she signed the note, and is not liable on said note. Appellant, Hal Warden, testified:

My wife, Inez Warden, and I both signed the note sued on, which was given for the purchase price of a jack which I bought from appellees. My wife was not interested in the purchase of the jack, and only signed the note for my accommodation. I bought the jack in the latter part of February, 1911, from appellee, J. V. Middleton, at his house. I told Mr. Middleton that if he would warrant and guarantee the jack to get, or sire, only black or bay colts, I would give him the sum of $ 350, provided he would take my note for said sum due seventeen months after date. Mr. Middleton replied that he would warrant or guarantee that the jack would get, or sire only black and bay colts. Upon such representations and warranties, I agreed to purchase the jack, and executed my note to appellees for the agreed sum, due seventeen months after date. He asked my wife to sign the note with me, and I also asked her to sign it as a favor to me. She was not interested in the purchase of the jack. The reason I wanted the note payable seventeen months after date was that I knew that by the time the note became due, the colts sired by the jack would prove whether they would be black or bay colts. The jack was blue in color, and practically all the colts sired by him during the season of 1911 took after the jack in color, and none of them were blacks or bays. I then told Mr Middleton about the jack not coming up to the warranty, and told him that I would not pay for it. The jack is of no value to me, and I would not have agreed to pay any price for him if I had known that his colts would take his color. The jack is worthless to me, and I offered to return him to appellees. I published a notice in a newspaper in the county, warning all persons not to purchase my note, as it is without consideration to me.

Other testimony was introduced by appellants tending to corroborate the testimony of appellant Warden as to the guaranty or warranty by appellee that the jack would only sire black or bay colts.

J. V Middleton, one of the appellees, testified: Appellant Hal Warden saw the jack and examined him before he purchased him. He knew that the jack was blue, with a black stripe down his back. I did not represent to appellant Hal Warden that the jack would only sire black or bay colts, and did not give him a warranty to that effect. The jack had sired colts of other colors, and Hal Warden had seen some of these colts and knew that they were not black or bay.

The jury returned a verdict for appellees for the amount sued for, and the case is here on appeal.

Judgment affirmed in part and reversed in part and cause dismissed.

J. P. Fancher and Wade H. James, for appellant.

Instructions numbered 5, quoted in the opinion, and 6, given by the court on its own motion, were based upon the erroneous view held by the court that the case was one sounding in tort instead of growing out of contract--failed to distinguish between an action based upon an express warranty and one grounded upon false representation; and in refusing to instruct the jury as requested on the question of express warranty the court committed reversible error. For distinction between representation and warranty, see 53 Cyc. 368.

The allegation of express warranty was a legal defense, and appellants were entitled to instructions covering their theory of the case.

Where there is an allegation in the answer and proof to support it the court has no right to disregard the issue and sub silentio charge the jury that such contention is not of sufficient moment to merit the consideration of the jury. Art. 7, § 23, Const.; 117 S.W.570; 37 Ark. 164; Id. 239.

The giving of the instructions by the court based upon fraud and misrepresentation did not cure the omission to instruct upon the question of express warranty. 76 Ark. 333; 70 Ark. 319.

The court erred in refusing to direct a verdict for Inez Warden. The allegation of the answer that she was a married woman at the time she signed the note and not legally bound is supported by uncontradicted evidence, and by the further proof that she was not interested in the purchase of the jack, that it was not for her benefit or for the benefit of her separate estate. 48 Ark. 220; 29 Ark. 346; 70 Ark. 5; 66 Ark. 437.

Festus O. Butt, for appellees.

1. The judgment should be affirmed, because the bill of exceptions affirmatively shows that it does not contain all of the evidence and all of the instructions in the case. 147 S.W. 445; 121 S.W.736; 82 F. 773; 116 Ala. 629; 82 Ill. 309; 66 Minn. 179; 79 F. 291; 33 Ore. 172; 67 Kan. 862; 8 Okla. 169; 4 Ind. 266; 21 Ind. 249; Id. 273; 93 Ark. 426; 150 S.W. 391; 106 S.W. 939; 104 S.W. 156.

2. This court has long since settled the rights of a purchaser under an express warranty, such as is claimed in this case, and declared that he may (a) affirm the contract, keep the property and sue on the contract of warranty; or (b) affirm the contract, keep the property, and, when sued for the purchase money, set up the false warranty by way of recoupment in tort; or (c) rescind the contract, resist the recovery of purchase money and recoup on the warranty in tort. 22 Ark. 254; 30 Ark. 362; 53 Ark. 159. Clearly, in this case, under the allegations of the answer, defendants were seeking a recoupment and not basing their claim upon the contract of warranty. Warden's recovery, therefore, must rest upon tort. 34 Cyc. 657. Instructions given by the court were therefore correct, and it properly refused to give instructions asked by appellants which were based upon the theory that appellants were seeking to recover upon an express contract of warranty.

The requested instructions were also erroneous in assuming that an express warrant is absolutely enforceable regardless of whether it contravenes nature's law, or is ridiculous or impossible and known to the buyer to be so. 35 Cyc. 376; 11 Ark. 139; 23 Ark. 730; 137 Mo.App. 679; 74 Ark. 46.

Finally, they err in directing a recovery by the appellant without a tender of the property back or any actual rescission of the sale. 103 Mo.App. 135; 142 S.W.495.

J. P. Fancher and Wade H. James, for appellants in reply.

A bill of exceptions is sufficient if it appears inferentially that all the evidence is brought up. 35 Ark. 450; 36 Ark. 496; 49 Ark. 364. See also 67 Ark. 223.

OPINION

HART, J., (after stating the facts).

It is first contended by counsel for appellees that the judgment should be affirmed because the bill of exceptions does not affirmatively show that it contains all of the evidence. The bill of exceptions recites the following: "The plaintiffs to sustain their cause, introduced the following evidence: (Then follows the testimony of plaintiffs' witnesses.)" It then recites: "The plaintiffs here close their case, and the defendants, to sustain the issue on their part, introduced the following evidence;" and after setting out the testimony of the witnesses for the defendant, the bill of exceptions contains this statement: "The defendants here announced that they had closed their evidence in this case; whereupon plaintiffs introduced the following witnesses in rebuttal." Then follows the testimony of two witnesses for the plaintiffs. The bill of exceptions then recites: "The plaintiffs have announced that they had closed their evidence in this cause, and the court gave the following instructions, numbered from 1 to 7." The bill of exceptions then recites that the defendants offered the following instructions which...